Grace, Not Severity, Wins Culture Wars, Stuntz '84 Says

Twice in American history the imprisonment rate in the United States has exploded. These explosions in the rate that people are incarcerated correlates with two crusades against vice by the theologically conservative Protestant church, argued William J. Stuntz '84, Henry J. Friendly Professor of Law and Vice-Dean for Intellectual Life at Harvard Law School, at the Meador Lecture on Law and Religion Oct. 18. Beginning with the period of 1890 through the 1930s and again in the 1970s through today, laws against gambling, prostitution, alcohol, and drugs in the earlier part of the century and laws against abortion and drugs in the latter part coincide neatly with the increase in the prison population.

“The common thread in all of the trends I just mentioned is the political power of a religious community, my religious community. I’m an evangelical Christian. I belong to a theologically conservative Protestant church,” he said. “People who belong to churches like mine, meaning mostly white, theologically conservative or orthodox Protestants have been a powerful voting block over the last generation as was the case for the first generation of the 20th century, in between, not so much. America’s criminal justice system has become vastly more punitive during the last generation as it did during the first generation of the 20th century, in between, not so much.”

Stuntz structured his argument by asking and answering four questions related to the trends he pointed out. First, he asked, what is the relationship between them? Second, why should that relationship seem surprising? Third, why does this surprising relationship exist? And finally, how might things have happened differently?

“My claim is that theologically conservative Protestants either triggered the rise in punishment or made it more extreme than it otherwise would have been,” he said. During both time periods when the imprisonment rates grew, the popular politicians were evangelical Protestants. William Jennings Brian and Franklin D. Roosevelt from the earlier period and Ronald Regan and George W. Bush from the later, were prominent practitioners of “tough on crime” politics, he explained. Both times in history theologically conservative Protestants fueled the anti-vice crusades by voting for and supporting legislation that made the American criminal justice system and politics more punitive than any other time in history.

Stuntz doesn’t place the blame only on the Protestants. “My church community is not solely responsible, not remotely solely responsible for the two punitive turns that America’s justice system has taken in the last 20 years. But I suspect we made both of those punitive turns much more punitive than they otherwise would have been.”

So, why should the relationship seem surprising?, he asked “If you look at the long history of English and American criminal law, it does not support the proposition that Christians tend to make justice systems more punitive, more the opposite. Christians and Christianity made English and early American criminal justice more lenient and more libertarian. The last 120 years have been the exception, not the rule,” Stuntz said. He credits this argument to Jim Whitman, a legal historian at Yale. The biblical story of the prodigal son illustrates his point. The story is about a father and his two sons. One is loyal to his father while the other son demands his inheritance even though the father is still alive. He squanders all of his money and eventually returns home expecting to be chastised and turned away. To his surprise, his father greets him with open arms and forgiveness.

“We aren’t told about what happens to the prodigal when he returns to his father’s household but the story clearly invites you to believe that he’s a changed man, far better and larger, a more decent human being at the stories end than at the beginning. What changed him? The answer is his father’s embrace,” Stuntz said. “There’s some reason to believe that principle applies at least sometimes in this world, not just in the next.”

He pointed to the abortion rate as an example. In the 1960s, when abortion was a crime, abortion rates soared. In the last 25 years since abortion has become a constitutional right, abortion rates have fallen 30 percent.

In the last 25 years, thousands of crisis pregnancy centers were started by pro-life churches and organizations. “Those centers lack the power to punish or coerce, but they seem to have the power to change lives, not with rules and threats but with mercy and relationships. Notice the pro-life movement has enjoyed its greatest success when its tactics have been most grace-like,” Stuntz noted.

Similarly in the 1990s, when more police officers were put on the streets, there were fewer arrests and dramatically lower crime rates. More police officers meant more opportunities to create relationships within communities. The goal of the police force was to keep people out of prison, not put them there, he said. “It’s a successful tactic. The jurisdictions that saw the biggest crime drops in the 1990s were the ones that hired the most cops and locked up the fewest criminals. Grace and mercy and relationships are transformative and that truth has practical value for people who think about law and politics and government. If you doubt that, talk to some big city police chiefs.”

The Christian faith teaches people to not point fingers. It is not a faith that teaches people to draw moral lines and judge others to be on one side or the other. It teaches leniency and compassion. “My church community ought to be the last group that seeks huge increases in the prison population,” he said.

The third question Stuntz asked, why did that surprising association happen, was the hardest to answer, he said. American Protestants in the last 20 years have held the belief that law shapes culture when traditionally it was the other way around. “American’s are incurable legal optimists. One reason why American Christians have behaved as we have is that we have been more American than Christian. That’s why so many of us have believed that criminally prohibiting liquor or cocaine, gambling or abortion would actually put a stop to those practices, when all the available evidence suggests otherwise.”

Another reason for the surprising association is that the American political system makes criminal laws easy to enact while enacting other laws is much tougher. “Americans suffer from too much criminal law for the same reason we burn too much gasoline because both the laws and the gas cost too little.” Criminal statues are politically cheap because they are not consistently enforced and politicians believe that their constituents won’t be subject to the punishments it delivers.

Punitive policies were supported by Christian communities because the policies didn’t seem as punitive as they turned out to be, he said. Politicians and their supporters were more interested in protecting victims than in punishing wrong doers. Often pressure to create punitive policies came from other neighborhoods. These outside policies were designed to be imposed on a targeted community, not the entire population. Governments today have two options, they can either add more prison beds or more cops, he said. More prison beds destroy relationships, but adding more police creates the opportunity for more relationships. “When you divorce punishment from relationship, when you separate justice from empathy, justice inevitably takes on a more severe cast as it has over the past century and especially over the last generation.”

“How might it all have been different?,” Stuntz asked. “The sad thing is I think it might have been very different indeed.” Current culture wars should have taken cues from the civil rights movement, he suggested. Fought primarily by black Protestants, the civil rights movement sought reconciliation not retribution. People oppressed by Jim Crow policies didn’t seek damages or punishment for the architects and overseers of the laws that demoralized them. The Civil Rights Act of 1964 allowed blacks and whites to work side by side and the Voting Rights Act in 1965 created voting rights so that blacks and whites could vote side by side. “King fought and bled, ultimately died, for the right to have a relationship with those who refused a relationship with him. He didn’t seek to punish, though he had every excuse and every right to seek precisely that. He wanted his enemies’ embrace. It’s an utterly captivating vision and it changed the culture.” King’s change to American culture is staggering, Stuntz said, and it was done without putting anyone in prison.

“By and large, I think law can do three things. It can punish wrong doing, it can relieve suffering, and it can promote and protect, sometimes, create relationships. The culture wars of the early and late 20th century focused on the first of those three worlds. King’s culture war focuses on the second and third. King got it right and my generation of American Protestants has gotten it badly wrong.”

King’s movement was America’s good culture war, Stuntz said. It was the perfect marriage of law and grace. “Legal change helped produce social and cultural change not by locking up evil-doers but by building the beginnings of an integrated national community.” Stuntz said. “Some might wish for an American future free of culture wars. I don’t. I think these battles are worth fighting, but I do wish for good wars, the kind King fought, the kind in which we love our enemies and fight for the chance to embrace them.”

The Meader Lecture was inaugurated in 1997 to mark the retirement of Prof. Daniel J. Meador from the Law School. Designed to promote the interdisciplinary study of religion and law, the lecture was endowed through gifts of friends and students of Prof. Meador, and through alumni of the Law School. • Reported by Emily Williams